The Court of Appeal by a 2-1 majority on 19 November dismissed an appeal against the High Court decision in April 2012 dismissing two Christian media companies’ application for judicial review of a decision by the Radio Advertising Clearance Centre (RACC) to refuse clearance of a radio ad which the RACC considered to be in breach of the ban on political advertising contained in sections 319 and 321 of the Communications Act 2003. In otherwords, the RACC correctly banned the ad.

The appellant media companies accepted that they could not challenge the statutory ban for incompatibility with the European Convention on Human Rights. The Grand Chamber of the ECtHR had recently determined in its Animal Defenders decision that the UK’s prohibition of political advertising on radio and television is compatible with Article 10 (freedom of expression).

Instead,the appellants were confined to technical issues regarding the meaning of the words “directed towards a political end” and how these words were interpreted by the RACC in its original decision banning the ad. One issue where the Master of the Rolls agreed that the judge in the High Court had got it wrong was whether it is for the court itself to decide whether an advertisement is directed towards a political end, or whether this is a question which the court should leave to the RACC to make its own decision about, without interfering with that decision unless it is patently irrational. The Master of the Rolls took the view that this is an issue of mixed fact and law for the court to decide (but agreed with the RACC that the advertisement had been directed towards a political end).

There may be more cases of this nature to come, despite the Animal Defenders decision, with the legal battleground being just what amounts to a political advertisement.